RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060013454


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Acting Director      |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his date of rank to sergeant first class
(SFC/E-7) be adjusted from March 2006 to August 2003 and that he be
considered for promotion to master sergeant by a standby advisory board.

2.  The applicant states, in effect, that he was selected for promotion to
SFC by the FY 2003 Selection Board but he was not promoted until 2006.  The
applicant also states that had he been promoted to SFC in 2003 he would
have been promoted to master sergeant (MSG/E-8) in 2005.

3.  The applicant provided a copy of his DA Form 5500 (Body Fat Content
Worksheet (male)); a copy of his DA Form 4856 (Developmental Counseling
Form); the Puerto Rico Army National Guard EPS Board E7 Roster, FY 2003;
Puerto Rico Army National Guard EPS Board E7 Roster, FY 2005; and a copy of
his DD Form 214 (Certificate of Release or Discharge From Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he enlisted in the
Regular Army on 4 November 1975 and served a total of three years on active
duty.  On 15 October 1983 the applicant enlisted in the United States Army
Reserve (USAR) attaining the rank of SFC.  The applicant was honorably
released from active on 7 August 2006.

2.  The Puerto Rico Army National Guard EPS Board E7 Roster FY 2003, dated
19 February 2003 shows the applicant was selected for promotion to SFC/E-7
in MOS 95B4 with a score of 721.

3.  A DA Form 5500-R (Body Fat Content Worksheet (male)), dated 15 August
2003 shows the applicant’s maximum body fat percentage allowed was 26% and
his actual body fat percentage was 25.16%.

4.  On 25 October 2004, a NGB Form 3815-R (SIDPERS input and Control Date
Authentication and Transmittal) Section 7k –shows that a DA Form 268
(Report To Suspend Favorable Personnel Actions (Flag) was submitted to
enroll him into the weight control program.

5.  The Puerto Rico Army National Guard Element, Joint Forces Headquarters,
Enlisted Promotion Board List, dated 8 December 2005, shows the applicant
was selected for promotion to the rank of SFC in MOS 31B4 with a score of
694.

6.  The applicant’s DD Form 214, Item 12h (Effective Date of Pay Grade)
shows his effective date of pay grade was 21 March 2006.

7.  Puerto Rico National Guard Element, Joint Forces Headquarters Orders
Number 53-34, dated 21 March 2006, promoted the applicant to SFC effective
21 March 2006.  These orders further show that the applicant incurred a 2
year service obligation.

8.  Puerto Rico National Guard Element, Joint Forces Headquarters Orders
Number 311-547, dated 7 November 2006, reduced the applicant to the grade
of SSG effective 23 October 2006 for administrative reasons (failure to
complete the two year service obligation).

9.  Puerto Rico National Guard Element, Joint Forces Headquarters Orders
Number 318-567, dated 14 November 2006, discharged the applicant from the
Army National Guard and assigned him to the Retired Reserve effective
23 October 2006.

10.  During the processing of this case, an advisory opinion was obtained
from the Chief, Personnel Division, Departments of the Army and Air Force,
National Guard Bureau, Arlington, Virginia recommending that the
applicant’s date of rank and promotion effective date be adjusted to August
2003; the date the applicant would have been promoted had his promotion
letter of acceptance gone through proper channels.  The advisory opinion
recommends that the applicant’s official military record be forwarded to
the next master sergeant promotion board at the state level.  The opinion
also states that the applicant believed his record was in error because he
was number five on the FY 2003 E-6 to E-7 promotion list and that had he
been promoted on the E-7 list, he would have made E-8 on the 2005 list.
The applicant was mobilized at Guantanamo, Cuba and returned in 2003.
Months later he discovered that at least two other Soldiers with a lower
number on the same list had been promoted.  Upon inquiring to his company
commander, the applicant was told he would be promoted in September 2004
but it did not happen.  The applicant was told this every month until
February 2005.  The advisory opinion states that the applicant submitted
his concerns to the IG’s Office and was informed that the administrator in
his command channels received a letter notifying them of the applicant’s
promotion in August of 2003 but the administrator denied ever receiving it.
 The applicant received a letter of promotion in May 2005.  Secondly, the
advisory opinion stated that the applicant was in compliance with AR 600-9,
table 2 for his age group and older.

11.  The opinion was forwarded to the applicant for
acknowledgement/rebuttal on 12 December 2006.  He did not respond.
12.  National Guard Regulation 600-200 (Enlisted Personnel Management)
paragraph 7-8, section (c) states that the promotion authority publishes or
amends the promotion instrument to show the DOR and approve retroactive
effective date.  The new orders or amendment will state that the next
higher promotion authority per paragraph 7-3 had approved the earlier or
corrected effective date of promotion.

13.  National Guard Regulation 600-200, paragraph 11-27 provides the
criteria for promotion to sergeant/pay grade E-5 through sergeant major/pay
grade E-9.  This regulation states that to be eligible for consideration,
selection, and promotion Soldiers must be in a promotable status.  A
Soldier with a suspension of favorable personnel action in effect will be
considered by the board unless completely ineligible for consideration, but
cannot be placed on the promotion list or promoted until the suspension has
been removed.  This requirement is not waivable.  The flagging action will
not be seen by the board.  This paragraph also states that the Soldier must
be participating satisfactorily in the active ARNGUS in the next lower
grade and meet the timer in grade and time in service requirements.  For
promotion to master sergeant the time in grade requirement is 12 months and
the time in service requirement is 13 years.

14.  National Guard Regulation 600-200 paragraph 11-53 states that a
Standby Advisory Board (STAB) are convened to consider records of Soldiers
not reviewed by a regular board; whose records, due to material error; were
not reviewed by the regular board; and whose records were reviewed by the
regular board, were not selected for promotion, and whose records contained
a material error which may have been a factor in nonselection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his date of rank for SFC be adjusted from
21 March 2006 to 15 August 2003.

2.  Evidence shows that the Puerto Rico Army National Guard EPS Board E7
Roster FY 2003 selected the applicant for promotion to the grade of SFC on
19 February 2003.

3.  Evidence shows that the applicant was in compliance with the height and
weight standards established in accordance with AR 600-9 on 15 August 2003.
 The flagging action was not initiated until 25 October 2004.  There is no
evidence in the available records which show that the applicant was flagged
or otherwise ineligible for promotion to SFC on 15 August 2003.

4.  Additionally, evidence shows that the intent of the Puerto Rico Army
National Guard, as promotion authority over the applicant in this case, was
to promote him on 15 August 2003.

5.  Based on the foregoing, the applicant is entitled to have his records
corrected to show his DOR to SFC and effective date of promotion is 15
August 2003.  Therefore, Puerto Rico National Guard Element, Joint Forces
Headquarters Orders Number 311-547, dated 7 November, which reduced the
applicant to SSG for failing to complete his two year service obligation
should be revoked.

6.  The applicant's records should be placed before the appropriate STAB
for consideration for promotion to the grade of MSG and if selected for
promotion that he be so notified, promoted to MSG, if eligible, and
advanced on the retired list in the grade of MSG, if appropriate.

7.  Based on the foregoing, the applicant's finance records should be
audited by Defense Finance Services to determine any and all back pay and
allowances due as a result of the above corrections.

BOARD VOTE:

___WFC_  ___EEM_  ___RMN_  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief.  As a result, the Board recommends that the
state Army National Guard and the Department of the Army records of the
individual concerned be corrected by:

      a.  amending Puerto Rico National Guard Element Joint Forces
Headquarters, San Juan, Puerto Rico, Orders Number 53-34, dated 21 March
2006 to show the individual’s DOR and effective date as 15 August 2003;


      b.  revoking Puerto Rico National Guard Element, Joint Forces
Headquarters, San Juan Puerto Rico, Orders Number 311-547, dated 7 November
2006;


      c.  submitting the individual’s ARNG records and Department of the
Army records to the next eligible ARNG Master Sergeant promotion board; and

      d.  auditing the individual’s DFAS record and paying him all back pay
and allowances as a result of these corrections.




                                  _____William F. Crain______
                                            CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20060013454                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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